Can police stop and arrest you on private property?

There are a lot of things police officers can do. They can arrest you for walking into a convenience store and stealing a chocolate bar. They can stop you on the street and ticket you if you’re speeding. They can even demand you to take a breathalyzer test once you’re pulled over if they think you’ve been drinking.

But one thing they can’t do, confirmed by a recent rule in the Court of Appeal for Ontario, is follow you down a road for a bit with the possible intention of pulling you over, only to wait until you pull into a driveway to then finally decide to arrest you for drunk driving.

This was the case of an Ontario driver in Sault Ste Marie, Walker McColman, who, after being pulled over, admitted to having at least 10 beers and tested way over the limit BAC, had his original conviction from 2016 overturned.

This had nothing to do with the fact that McColman was not drunk, he admitted to it after all, and more to do with how the police went about detaining him.

After they saw him leaving a convenience store, they began following him on his ATV. They followed him for a full minute without pulling him over. It wasn’t until he was on his driveway that the police sirens and lights were even activated.

At this point, since McColman was safely on his driveway, the police no longer had the right to pull him over, as he was no longer on a public highway, and you cannot be arbitrarily stopped on a piece of private property for a sobriety test.

His conviction was overturned because the police had violated McColman’s S.9 Charter Rights; Everyone has the right not to be arbitrarily detained or imprisoned.

While some people, including the one dissenting Justice, disagree with this ruling, concerned with the fact that it seems as though drunk drivers could now be able to avoid police capture by simply pulling into a driveway, this ruling is an important one.

As Justice M. Tulloch explained in his reasoning;

The Crown argues, and the minority accepts, that declining to authorize this police power will lead to an absurd consequence: drivers will be able to flee to private property to escape the enforcement of highway laws. In my view, this concern is misplaced. This is not a case of escape: there is no suggestion that the respondent’s actions were an artifice designed to evade police. In a true case of escape, the police may well have the authority to continue pursuing that person. It is important to bear in mind that the question is whether the police are entitled to stop someone on private property without any cause for suspicion.

Simply put, he is saying that a person cannot be pulled over randomly on their driveway by police. If they don’t make it into their driveway, they can be stopped. Had the police activated their lights earlier, then the stop would have been lawful.

There are already a lot of things police can do. Pulling someone over unlawfully on a driveway is now not one of them.

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